Pete Crane is a parent, campaigner of inclusion and advocate of Community Circles, a membership organisation that creates opportunities for people to come together and help each other have better and more connected lives. Here Pete explores how to comply with the 2005 Mental Capacity Act in a straightforward, and cost-effective manner and the role of a circle of support.
We all have to follow the Law. We may not like it, we may not agree with it, but it is the Law – and if you break the Law there will be consequences.
The basic premise of the 2005 Mental Capacity Act is clear: Engaging in harmful actions towards vulnerable individuals can have severe consequences.
The Act is typically the legal framework utilised to prosecute individuals who have perpetrated abuse in care settings. In instances of public scandal related to care facilities, criminal prosecutions often ensue under the 2005 Mental Capacity Act. Conviction of such crimes can have life changing consequences for the individuals involved.
So, the question is, in this time of austerity, with all aspects of NHS and social care under huge pressure and many Local Authorities struggling to find adequate funding to meet their legal obligations,
How can you make sure that you comply with the law in a common sense, straight forward and economic way?
The key is to understand that, because we are discussing “The Law,” evidence is paramount. You may face consequences if there is evidence of law-breaking, whereas having evidence of consistently acting in the “best interests” of the individuals in question can mitigate any issues.
We often believe that our personal opinions will serve as strong evidence to justify our actions. However, in practice, under the 2005 Mental Capacity Act, the Court of Protection is where your evidence will be evaluated. The Court prioritises reviewing whether discussions, consultations, and, most crucially, the inclusion of the individual at the centre of any care situation have occurred meaningfully. So, how can we ensure this in practice?
My preference has always been to use a ‘circle of support’ – a generic term of course, that simply means a support system for individuals who seek and require organised support in their life.
There is no right or wrong way to set up and run a circle of support but here are my suggestions for you to consider.
- Of course we’re discussing vulnerable individuals, so the initial step should involve asking the person (typically referred to as the ‘focus person’ within circle terminology) – or their advocate if they’re unable to speak for themselves – if they’re interested in trying a circle of support to potentially enhance their quality of life.
- The next step is to consider the most effective method for individuals familiar with the person to exchange knowledge, ideas, and practical tips aimed at improving the well-being of everyone involved – through face to face meetings or virtual computer based meetings
- Who wants to be involved? From the perspective of the Court of Protection, evidence indicating the involvement of the person, their family network, or, if no family exists, any unpaid friends, alongside professional support, will significantly bolster the evidence of decisions made by this collective group of individuals.
- Just to remind you – this is all about creating evidence of good care and a sound decision making process for the focus person. Therefore, maintaining an agreed record of each meeting is crucial for demonstrating compliance with the 2005 Mental Capacity Act. If this record can be owned by the focus person and kept by them (or by the person who typically acts on their behalf), then over time, a coherent and easily accessible record of decisions made – including why, how, what worked, what did not work, and future plans – will become available to anyone involved in making ‘best interest’ decisions.”
- You will find this evidence base becomes very useful when discussing care funding needs. The more individuals involved in the circle of support, including the person, family, friends, and professionals, the stronger the funding request will become, as they share knowledge of effective care solutions.
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